We reverse.The Macy defendants failed to meet their initial burden of establishing that they did not sell the skirt at issue (seeClark v. Globe Bus. Furniture, 237 A.D.2d 846, 847, 655 N.Y.S.2d 184 [1997] ; see generallyHealey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601–602, 640 N.Y.S.2d 860, 663 N.E.2d 901 [1996] ). The Macy defendants correctly note that neither plaintiff nor her mother could identify the specific store from which the skirt was purchased.
This case can be distinguished from Clark v Globe Bus. Furniture Inc., 237 A.D.2d 846, 847 [3d Dept 1997], in which the Third Department upheld the lower court's denial of summary judgment, holding that "gaps in its adversary's case does not entitle the moving party to summary judgment" (citing Antonucci v. Emeco Indus., 223 A.D.2d 913, 914) and noting that "the identity of [a] manufacturer ... may be proven circumstantially" (citing Healey v Firestone Tire &Rubber Co., 87 N.Y.2d 596, 601; Otis v Bausch &Lomb, 143 A.D.2d 649, 650). The court referred to the fact that a photocopy was produced of a sticker bearing the defendant's logo that had been allegedly removed from the bottom of the chair, from which it found there was sufficient circumstantial evidence to defeat the defendant's claim that it never manufactured a chair with a certain model number (Clark v Globe Bus. Furniture Inc., 237 A.D.2d 846, 847 [3d Dept 1997]).
This case can be distinguished from Clark v Globe Bus. Furniture, 237 A.D.2d 846, 847 [3d Dept 1997], in which the Third Department upheld the lower court's denial of summary judgment, holding that "gaps in its adversary's case do not entitle the moving party to summary judgment" (citing Antonucci v. Emeco Indus., 223 A.D.2d 913, 914) and noting that "the identity of [a] manufacturer... may be proven circumstantially" (citing Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601; Otis v. Bausch & Lomb, 143 A.D.2d 649, 650). The court referred to the fact that a photocopy of a sticker bearing the defendant's logo was allegedly removed from the bottom of the chair, from which it found was sufficient circumstantial evidence to defeat the defendant's claim that it never manufactured a chair with a certain model number (Clark v Globe Bus. Furniture, 237 A.D.2d 846, 847 [3d Dept 1997]).
Initially, defendants contend that Supreme Court erred in failing to grant their summary judgment motions as to the design and manufacturing claims based upon plaintiff's failure to establish that an air pipe manufactured and supplied by them caused plaintiff's injuries. Notably, a defendant who seeks summary judgment claiming that it did not manufacture the allegedly defective product has the initial burden of establishing that, as a matter of law, it did not manufacture the product in question; the plaintiff must then rebut this showing with affirmative evidence sufficient to create a reasonable inference that the defendant's product caused the injury (see Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 847;Antonucci v. Emeco Indus., 223 A.D.2d 913, 914; see also Scheidel v. A.C. S., Inc., 258 A.D.2d 751, 754, lv denied 93 N.Y.2d 809). Here, defendants point out that while the air pipes originally manufactured by Walgren and supplied by Eco-Tec had 90-degree elbow bends at the end protruding from the top of the tank and the pipes were permanently attached to an air hose by brass fittings, it is clear from plaintiff's testimony that there were four air pipes in use at the time of the accident without any elbow bends or couplings similar to those manufactured by Walgren nor were they permanently attached to air hoses.
In any event, mere lateness alone is not a barrier to the amendment but, rather, "'[i]t must be lateness coupled with significant prejudice to the other side'" ( Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959). The only prejudice alluded to by plaintiffs is the need for additional discovery, which "does not constitute prejudice sufficient to justify the denial of a motion to amend pleadings" ( Rutz v. Kellum, 144 A.D.2d 1017, 1018; see Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 848). We therefore further modify the order by granting defendants' motion seeking leave to amend the answer to add the proposed second counterclaim upon condition that defendants serve the amended answer within 20 days of service of a copy of the order of this Court with notice of entry.
Further, defendant is not entitled to judgment based upon the unavailability of the lug nuts following the accident ( see, Bauer v. Bashline Indus., 219 A.D.2d 841, 841-842; Abar v Freightliner Corp., 208 A.D.2d 999, 1000; Otis v. Bausch Lomb, 143 A.D.2d 649, 650). The existence and nature of a product defect may be proven circumstantially ( see, Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 847; Otis v. Bausch Lomb, supra, at 650), and the proof submitted by plaintiff raises triable issues of fact whether the lug nuts allegedly sold by defendant were defective, i.e., not "fit for the ordinary purposes for which such goods are used" (UCC 2-314 [c]; see, Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-259, rearg denied 87 N.Y.2d 969). We therefore modify the order by denying the motion in part and reinstating the first cause of action.
Turning first to the amendment of the complaint, we note that leave to amend is within the discretion of the trial court and shall be "freely given" absent prejudice to the opposing party (CPLR 3025 [b]; see, Henderson v. United Parcel Serv., 245 A.D.2d 789, 790). Where the party requesting the amendment seeks an increase in the ad damnum clause based upon new or aggravated injuries, it is incumbent upon that party to submit medical proof substantiating the nature, severity and cause of such injuries (see, Henderson v. United Parcel Serv., supra, at 791; Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 848; Simmons v. Austin, 163 A.D.2d 720). Plaintiff submitted voluminous medical documentation establishing that, during an extended course of treatment, he experienced complications from his initial injuries resulting in a permanent and severely disabling medical condition.
The court properly denied the cross motion of Homier for summary judgment dismissing the complaint, but erred in granting the motions of U.S. Lawn and Woodlawn for summary judgment dismissing the third-party complaint and cross claims against them. A plaintiff in a products liability action generally must establish the identity of the supplier of the allegedly defective product ( see, Hymowitz v. Lilly Co., 73 N.Y.2d 487, 504, cert denied 493 U.S. 944). The identity of the supplier may be established by circumstantial evidence ( see, Fisher v. Alexander Fiden Mach. Co., 242 A.D.2d 968, 969). Homier failed to meet its burden of establishing as a matter of law that it did not sell the wheel in question. Even assuming that Homier met its burden, we conclude that plaintiffs raised a triable question of fact on that issue ( see, Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 847; Otis v. Bausch Lomb, 143 A.D.2d 649, 650). U.S. Lawn and Woodlawn likewise failed to sustain their burden of demonstrating their entitlement to judgment as a matter of law on the issue of the identity of the supplier, and Homier in any event raised a triable question of fact on that issue ( see, Clark v. Globe Bus. Furniture, supra, at 847; Otis v. Bausch Lomb, supra, at 650).
Powertrack's president, Edward Condon, testified that there would be occasions when BTR hoses would come through its warehouses with a BTR number, explaining that Powertrack had no warehouse inspection procedures or policies in place to specifically identify BTR's, as opposed to Powertrack's, part numbers or lettering on hoses for possible return. Upon this showing, we conclude that the circumstantial evidence presented indicated that "it [was] reasonably probable, not merely possible or evenly balanced, that [Powertrack] was the source of the offending product" (Healey v. Firestone Tire Rubber Co., 87 N.Y.2d 596, 601-602; see, Raymond v. Di Stefano, 222 A.D.2d 810) and reiterate our caveat that "[m]erely highlighting apparent gaps in [the] adversary's case does not entitle the moving party to summary judgment" (Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 847). Nor do we find any basis for reversing Supreme Court's dismissal of all causes of action against Harrison Burrowes. Labor Law § 241 Lab. (6) imposes a nondelegable duty upon contractors, regardless of their degree of control or supervision, "to provide reasonable and adequate safety to the persons employed therein" (Labor Law § 241 Lab. [6]; see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501; Lawyer v. Rotterdam Ventures, 204 A.D.2d 878, 878-879, lv dismissed 84 N.Y.2d 864).
We also reject defendant's contention that Supreme Court improperly denied its motion for summary judgment dismissing plaintiffs' products liability claim. Insofar as defendant claims that plaintiff cannot make out a prima facie case inasmuch as there is no proof that a defect existed in the lift when it left defendant's repair shop, we need only note that plaintiffs may prove a defect inferentially by establishing that the product did not perform as intended for no reason unattributable to defendant (see, Peerless Ins. Co. v. Ford Motor Co., 246 A.D.2d 949). Moreover, rather than providing affirmative evidentiary proof demonstrating its right to judgment as a matter of law, defendant has merely challenged plaintiffs' ability to ultimately establish their case, which, of course, is insufficient to entitle defendant to summary judgment (see, Clark v. Globe Bus. Furniture, 237 A.D.2d 846, 847). To the extent defendant claims that it was a mere service provider and, therefore, cannot be held strictly liable for its sale of a defective product (see, Perazone v. Sears, Roebuck Co., 128 A.D.2d 15, 20), our review of the record does not reveal that defendant has established that it is primarily a repair shop, which only incidentally supplies parts. It is clear from the record that defendant used parts from its own department to repair the hydraulic lift and charged Surpass therefor. Furthermore, defendant's invoice states, "EQUIPMENT, PARTS SERVICE SPECIALISTS TO THE TRANSPORTATION INDUSTRY", which suggests that defendant sells parts as a function of its regular business, in which case it could be held liable for products liability (see generally, Furch v. General Elec. Co., 142 A.D.2d 8, 14, lv dismissed 74 N.Y.2d 792). Accordingly, we find that Supreme Court appropriately denied defendant's motion for summary judgment with regard to plaintiffs' first, third and fifth ca